CBA Ethics Committee, 1118 COBJ, Vol. 47, No. 10 Pg. 76

Position:Vol. 47, 10 [Page 76]
 
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47 Colo.Law. 76

Opinion 104: Surrender of File to the Client upon Termination of the Representation

No. Vol. 47, No. 10 [Page 76]

The Colorado Lawyer

November, 2018

CBA Ethics Committee

Adopted April 17, 1999; Revised September 15, 2018.

Introduction and Scope

The Colorado Bar Association Ethics Committee (Committee) has received numerous inquiries concerning the responsibility of a lawyer to surrender the client's file to the client when the representation terminates. These inquiries generally relate to the lawyer's obligations to deliver the file and involve discussion of the file's contents or portions thereof to which the client is entitled. These discussions can be especially difficult when the client's newly retained counsel requests the file from the terminated lawyer and the terminated lawyer's prior representation is being challenged or questioned.

The purpose of this opinion is to address the lawyer's general obligations to surrender the file upon demand after termination and to discuss what does, or does not, constitute the portion of the file to which the client is entitled. This opinion does not address those situations in which a lawyer has not been fully paid and the lawyer is asserting a retaining lien on the client's file. For a discussion of die lawyer's duties in those circumstances, see CBA Formal Op. 82, "Assertion of Attorney's Retaining Lien on Client's Papers" (1989, addendum issued 1995).1 For purposes of this opinion, the Committee assumes die lawyer has not asserted such a lien. This opinion also does not address the lawyer's specific obligations to retain and preserve files after die representation terminates, or whether, and under what circumstances, all or any part of die file may be subject to disclosure or discovery in civil and criminal proceedings.2

Syllabus

A lawyer's primary ethical obligation upon the representation's termination is to take the steps necessary, to the extent reasonably practicable, to protect the client's interests. One of these steps involves the lawyer's duty to surrender the file to the client. Lawyers are consistently disciplined for blanket refusals to surrender the file to the client on demand. Since the client may be uninformed about what is, or is not, contained in die file, the lawyer may inquire as to die client's needs; however, the lawyer should understand that it may be difficult for the client to define what is needed. Interrelated with die obligation to protect the client's interests is the lawyer's duty to define die client's needs liberally. In this context, the client's entitlement is not completely defined by traditional concepts of property and ownership. Rather, die entitlement is based on the client's right to access the file related to the representation so as to enable continued protection of the client's interests.

Under Colo. RPC 1.16(d), the portions of the file to which die client is entitled must be surrendered upon demand within a reasonable time, regardless of duplication costs and inclusive of documents in accessible or editable electronic format when such documents exist. In the event that the lawyer decides to retain a copy of the file for the lawyer's own purposes, the duplication costs for these items are not properly billed to the client. However, in the event that the lawyer voluntarily produces practice-related material, it is appropriate for the lawyer to charge the duplication costs of these documents to the client.

It is undecided under Colorado law whether an agreement between the lawyer and the client regarding duplication costs is binding as a matter of contract. While the payment of such charges may be purely a contractual matter, the Committee believes that the terms of such an agreement must be reasonable and otherwise must not violate die Colorado Rules of Professional Conduct (Colo. RPC or the Rules). However, retention of papers and property to which the client is entitled until such costs have been paid is subject to the same exceptions to the right of retention as under a properly asserted retaining lien. See CBA Formal Op. 82.

There are two primary types of material die lawyer may retain because they constitute portions of the file to which the client is not entitled. The first type of material includes documents in which a third party (e.g., another client) has a right to nondisclosure. A lawyer has the right to withhold pleadings or other documents related to die lawyer's representation of other clients that the lawyer used as a model from which to draft documents for the present client. However, the product drafted by the lawyer for the present client may not be withheld.

The second type of material involves those documents that would be considered practice-related materials relating to the business of representing the client. These include, for example, internal memorandum concerning the client file, conflicts checks, personnel assignments, and lawyer notes reflecting personal impressions and comments relating to the business of representing the client. This information is not needed to protect die client's interests and does not constitute a portion of die file to which the client is entitled.

Defining this second category in detail is difficult, as it is factually specific to each situation. In making these determinations, the lawyer should be guided by die principle that he or she has a duty to take those steps reasonably practicable to protect the client's interests by surrendering the necessary information. Generally, that duty favors production.

In the event that practice-related materials are intertwined with information that should be surrendered, the lawyer should produce factual information in the form of a summary or with personal impressions redacted if necessary. Given the variety of factual circumstances that may arise and the fact that Colorado courts have not addressed this area, the Committee provides its own analysis together with a summary of authorities from other jurisdictions to assist the lawyer in analyzing the particular situation which die lawyer may face. In die event of a dispute regarding production of documents in the context of litigation, a review of the documents in camera may be necessary.

Analysis

I. Discussion of the Lawyer's General Obligations

Colo. RPC 1.16(d) states:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law. (Emphasis added.)

Rule 1.16A, comment 1, states that the client's file "consists of those things, such as papers and electronic data, relating to a matter that the lawyer would usually maintain in the ordinary course of practice." For purposes of this opinion, the Committee uses the term "file" to include papers, e-mails, property, electronic data, and documents (including documents in editable format) as usually maintained in the ordinary course of practice except as otherwise specifically defined in the Colo. RPC.3

The Colorado Supreme Court has consistently recognized die client's right to die prompt delivery of die portions of die file to which die client is entitled upon die representation's termination and has consistently disciplined lawyers for failing to do so.4 In each of these cases, the Court disciplined the lawyer for refusing or failing to deliver, after client request, die file to which die client was entitled. The emphasis has been on recognizing die lawyer's duty to protect die client's interests rather than in defining in detail what constitutes die "papers and property to which the client is entitled" under Rule 1.16(d).

Indeed, Rule 1.16(d) does not define what constitutes die "papers and property to which die client is...

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